report to the joint committee on - west virginia...

Report to the Joint Committee on

Government and Finance of the

West Virginia Legislature

By

The Public Water System Supply Study Commission

Rahul Gupta, MD, MPH, FACP Chairman

December 15, 2015

Table of Contents

Introduction .................................................................................................................. 1 Members of the Commission ........................................................................................ 2 Recommendations ........................................................................................................ 3 Work Group 1 ........................................................................................................... 3 Work Group 2 ........................................................................................................... 4 Work Group 3 ........................................................................................................... 5 Work Group 4 ...........................................................................................................6 Work Group 5 ...........................................................................................................6 Acronyms ......................................................................................................................9 Appendix A .................................................................................................................. 10 Appendix B ................................................................................................................. 29 Appendix C ................................................................................................................. 34 Appendix D ................................................................................................................. 37 Appendix E ................................................................................................................. 39 Appendix F .................................................................................................................. 47 Appendix G ................................................................................................................ 48

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Introduction On March 8, 2014 the West Virginia Legislature passed Senate Bill No. 373 (SB373) which established the Public Water System Supply Study Commission (Commission). The first meeting of the Commission commenced on September 22, 2014. The initial report was submitted to the Legislature’s Joint Committee on Government and Finance on December 15, 2104. Since the submission of the 2014 report, the West Virginia Legislature passed Senate Bill No. 423 (SB423) on March 14, 2015, with an effective date of June 12, 2015. The bill’s purpose was to amend the Aboveground Storage Tank Act to address and correct certain unintended consequences of the original enactment. Much of W.Va. Code §22-31 has been deleted although key provisions have been moved into W.Va. Code §22-30.

SB423 modified the membership of the Commission to add two representatives designated by the West Virginia Business Industry Council; and one representative designated by West Virginia Rivers Coalition in addition to the previous members appointed by the Governor, one of whom to be a professional engineer experienced in the design and construction of public water systems; one a professional hydrologist and one an environmental toxicologist or other public health expert familiar with the impact of contaminants on the human body and one citizen representative. No longer included in the Commission are the appointees from the West Virginia House and Senate. The State agencies and other organizations that served previously under SB373 remain on the Commission. However, the position of Commission chair transferred from the Director of the Division of Homeland Security and Emergency Management (DHSEM) to the Commissioner of the Bureau for Public Health (BPH).

The charge to the Commission, as outlined in SB423, is consistent with the charge under SB373. As specified by both bills, the Commission was created for the purpose of studying and reporting back to the Legislature. The following is a list of the current members of the Commission.

http://www.legis.state.wv.us/Bill_Status/bills_text.cfm?billdoc=SB423%20SUB1%20enr.htm&yr=2015&sesstype=RS&billtype=B&houseorig=S&i=423

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Members of the Commission

Rahul Gupta, MD, MPH, FACP, Chair Representing Bureau for Public Health

Jimmy Gianato Representing West Virginia Division of Homeland Security and Emergency

Management

Tim Ball, Morgantown Utility Board Representing the West Virginia Municipal League

David Acord (Designee) Representing West Virginia Public Service Commission

Michael McCawley, PhD West Virginia University

Representing an environmental toxicologist or other public health expert who is familiar with the impact of contaminants on the human body

Pam Nixon Citizen Representative

Terry Polen, PhD (Designee)

Representing the West Virginia Department of Environmental Protection

Rick Roberts, E.L. Robinson Engineering Representing a professional engineer experienced in the design and

construction of public water systems

Amy Swann Representing the West Virginia Rural Water Association

Evan Hansen, Downstream Strategies Representing West Virginia Rivers Coalition

Ed Watson, Canaan Valley Institute Representing a hydrologist or other expert experienced in determining the flow

characteristics of rivers and streams

Jeffrey McIntyre, President West Virginia American Water Company

Representing West Virginia Business Industry Council

Rebecca McPhail, President West Virginia Manufacturers Association

Representing West Virginia Business Industry Council

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Commission Recommendations The Commission has been charged by SB423 with making recommendations related to five specific tasks. The first recommendations were submitted to the Legislature in December 2014 in order to achieve the tasks set out through passage of SB373 in 2014. SB423 updated provisions of the previous bill. Since its original appointment in 2014, the Commission has met on ten occasions, five times in 2014 and five times in 2015. The Work Groups which were created in 2014 and continued into 2015, took on the tasks as outlined in SB423. The following is a compilation of the Work Group recommendations which have been approved and are being advanced by the full Commission. The minutes of the Commission’s 2015 meetings may be found in Appendix A, with the exception of those from December 11, 2015 which have not yet been approved by the Commission. The composition of the Work Groups is listed in Appendix C.

Work Group 1

(1) A review and assessment of the effectiveness and the quality of information contained in updated Source Water Protection Plans (SWPPs) required for certain public water systems by the provisions of section nine-c, article one, chapter sixteen of this code

Recommendation of Work Group 1 At the time of this report, the BPH is beginning to receive a few SWPPs from Public Water Systems (PWSs) subject to provisions of SB423 (Appendix B). The agency has not approved any plans at this time. Recommendation 1.1: The Commission advances the recommendation to require either an annual evaluated and documented exercise of the SWPP or a documented annual review, and update if necessary, of the SWPP, with the utility reporting this information to the BPH. Narrative: An annual exercise of the SWPP would allow the PWS to review, refine and update the actions and goals identified in the plan. An exercise allows the opportunity for partners outside of the PWS to become more aware of the SWPP and the water system. Exercises can benefit all parties in implementing plans, identifying deficiencies and/or weaknesses which can subsequently be addressed. Exercises should be conducted in a format prescribed by the DHSEM that follows federal Homeland Security exercise guidelines. An alternative would be to have an annual review and update of the SWPP. This would consist of bringing together emergency responders and other stakeholders to review and provide comments on the SWPP as necessary.

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Recommendation 1.2: The Commission advances the recommendation to modify W.Va. Code §22-30-14 to clarify what information can be released by the Public Water System Supply Study Commission (PWSSSC) and making it permissible to release information that is already in the public domain. The proposed modification may be found in Appendix D.

Narrative: As water systems are preparing their SWPPs, they are also providing information to the public. The current code limits the information that can be presented regarding the potential contaminant sources. Many of the potential contaminant sources are currently within the public domain. This modification would clarify that PWSs may identify potential contaminant sources that are already subject to public disclosure when engaging the public. It also clarifies the rulemaking authority of the DHSEM regarding restricting information from public disclosure. Recommendation 1.3: The Commission advances the recommendation that DEP and the owner/operator notify downstream water utilities if there is a change in substance and/or a substantive change within an aboveground storage tank as outlined in W.Va. Code §22-30-9 (b) 1-6. Such notification is to be made as soon as possible. Narrative: As the owners of aboveground storage tanks modify the tanks or contents, the downstream water utilities should be notified as soon as possible of the changes. That would allow the water utilities to make any necessary adjustments to their SWPPs, thereby keeping the plans as current as possible. This also keeps the water utility knowledgeable on potential contaminates within the watershed.

Work Group 2 (2) A review and assessment of the effectiveness of legislation enacted during the 2014 Regular Session of the West Virginia Legislature, as it pertains to assisting PWSs in identifying and reacting or responding to identified potential sources of significant contamination, and increasing public awareness and public participation in the emergency planning and response process

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Recommendation of Work Group 2 Since the legislation has been in effect a relatively short period of time, this Work Group is still evaluating recommendations. Due to the recent passage of SB 423, the Commission was unable to assess the overall effectiveness of the legislation in this area. There are no final recommendations at this time, the Work Group will continue its work on evaluating the effectiveness of the legislation. The current findings, discussions and report that this Work Group is considering may be found in Appendix E.

Work Group 3 (3) The extent of available financing and funding alternatives which are available to existing PWSs to pursue projects which are designed to create alternate sources of supply or increased stability of supply in the event of a spill, release or contamination event which impairs the water system’s primary source of supply

Recommendations of Work Group 3 Recommendation 3.1: The Commission advances a recommendation for a continuing two million dollar appropriation to the BPH. Narrative: Funding would allow for continuation of BPH’s State-level Source Water Protection Program efforts and provide a continuing source of grant monies available to systems as they move forward on their statutorily required 3-year updates.

Recommendation 3.2: The Commission advances a recommendation that the West Virginia Legislature amend West Virginia Code 16-1-9c as found in Appendix F.

Narrative: This recommended change in statute allows the BPH to develop rules to provide for a staggering of second round submissions of SWPPs. Staggering submissions allows the agency to more effectively review proposed plans as well as provide technical assistance to public water utilities. This staggering should only apply to the second round submissions. It is the intention of this new rulemaking authority that all future submissions would adhere to a 3-year cycle.

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Recommendation 3.3: The Commission advances a recommendation that the West Virginia Infrastructure and Jobs Development Council (IJDC) and BPH, Office of Environmental Health Services, Drinking Water Treatment Revolving Fund amend their preliminary project ranking and/or scoring structures to add emphasis for source water protection. Narrative: This recommendation will assist in placing a particular emphasis on water projects seeking funding for a source water protection project.

Work Group 4 (4) A review and consideration of the recommendations of the U.S. Chemical Safety and Hazard and Investigation Board after its investigation of the Bayer Crop Science incident of 2008

Recommendation of Work Group 4 There are no final recommendations at this time. The Work Group will meet in January 2016 to resume consideration of the recommendations of the U.S. Chemical Safety and Hazard Investigation Board. The Work Group is reviewing an outline of a West Virginia Chemical Release Prevention Program that has been vetted by the U.S. Chemical Safety and Hazard Investigation Board and is included in Appendix G. Narrative: The outline was developed by a cross-sector committee convened by People Concerned About Chemical Safety to implement the United States Chemical Safety Board (CSB) recommendations that reduce the frequency and severity of chemical incidents in the Kanawha Valley.

Work Group 5 (5) Any recommendations or suggestions the study commission may offer to improve the infrastructure of existing Public Water Systems, to provide safe and reliable sources of supplies, and to pursue other measures designed to protect the integrity of public water service

Recommendation of Work Group 5 Recommendation 5.1:

The Commission advances that the Legislature should clarify that the utility does not have an implied duty to complete gaps in information on Safety Data Sheets (SDSs) that are provided/submitted. SB373 (2014) previously required Material SDSs to be submitted with the Spill Prevention Response Plan, but changes made in SB 423 (2015) removed this requirement. It is our recommendation that the legislation be amended to

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require the SDS information be provided with the Spill Prevention and Response Plans. If there is missing information, the entity submitting the SDS should have the burden of providing additional information. Furthermore, a current web link shall be provided by DEP to ensure that SDS information is available at a central repository accessible to PWSs. The Commission advances a recommendation that Legislative Rules adopted to implement W.Va. Code §22-30-10 (a) shall ensure that downstream PWSs are provided with the type and quantity of fluid stored in the regulated aboveground storage tanks at the facility and the location of the SDS associated with the fluids in storage. Narrative: The Work Group discussed SDSs and recommended that the legislation be amended to require SDS information be provided with the Spill Prevention and Response Plans. The Work Group also discussed the need for an active and live web link to be established by DEP so SDS information is available at a central repository accessible to public utilities. Recommendation 5.2: The Commission advances multiple recommendations on the single topic of spill notifications:

a) All spills must immediately, upon discovery, be relayed to any potentially impacted PWSs and to the BPH. The Commission further recommends that such notification be made through protocols established and coordinated with existing spill notification systems (spill reporting hotlines), with emergency response systems (county 911 systems) and with existing geographic information systems (GIS) and databases (such as those operated by the DHSEM, county 911 systems and the DEP), if possible. By efficiently utilizing existing GIS data, the spill location should be cross-referenced with a database of PWS information and the PWSs which may be impacted so that they can be quickly determined and automatically notified. Every effort will be made to determine location using GIS coordinates.

b) The reporting system should, at a minimum, provide information on the precise

location of the spill, the date and time of occurrence, the material(s) released and the stream(s) potentially impacted. Additional training/scripts for those taking the calls is recommended to obtain consistent information for each event.

c) All spills must be reported with reference to standardized global positioning system (GPS) coordinates. The Commission further recommends that the system be based upon the widely used and well-understood Latitude/Longitude system with location data obtained from a GPS receiver. Furthermore, correction notices will be issued, as necessary, and confirmation of the response and confirmation of the resolution shall be distributed.

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Narrative: The intent of the recommendations is to ensure the timeliest and most accurate information regarding spills that may enter the waterways is provided to the appropriate entities. At times, reports received related to spills are incomplete and in some cases inaccurate based on initial reporting from the scene. Additional training/scripts provided to those receiving the spill notification calls would improve consistency and accuracy of the information obtained from the entity submitting the notification for the event. Recommendation 5.3: The Commission advances a recommendation that DHSEM and Local Emergency Planning Committees (LEPC) provide available information to the PWSs, that they are not statutorily prohibited from providing to the public, to assist PWSs in identifying mobile threats. Narrative: The Work Group discussed mobile threats which were not specifically addressed in SB373 (2014) or SB 423 (2015). Mobile threats pose as great or greater threat to PWSs as fixed facilities. Due to the dynamic nature of chemicals moved in transportation, this presents a difficult challenge to having complete SWPPs. LEPCs and local emergency responders are an invaluable resource to PWSs and should be consulted in the development of SWPPs. LEPCs have information such as commodity flow studies, hazard analysis, transportation routes and other key information that is vital to PWS’s SWPP development. Recommendation 5.4: The Commission advances a recommendation that the Legislature should consider legislation to establish income tax credits for landowners for source water protection. Narrative: Similar programs have succeeded in many states, including Maryland (Md. Code § 10-723) and Virginia (Va. Code Ann. § 58.1-510-513) and provide incentives for landowners to protect source water. Any tax credits would be offset by other revenue sources.

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Acronyms

BPH Bureau for Public Health

CSB United States Chemical Safety Board

DEP Department of Environmental Protection

DHHR Department of Health and Human Resources

DHSEM Division of Homeland Security and Emergency Management

GIS Geographic Information System

GPS Global Positioning System

IJDC Infrastructure and Jobs Development Council

LEPC Local Emergency Planning Committee

PSC Public Service Commission

PWS Public Water System

PWSSSC Public Water System Supply Study Commission

SB373 Senate Bill 373

SB423 Senate Bill 423

SDS Safety Data Sheet

SWPP Source Water Protection Plan

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Appendix A

Commission Meeting Minutes Public Water System Supply Study Commission Meeting Minutes

August 5, 2015 at 10:00 am Governor’s Cabinet & Conference Room-Suite #10

Members Present: Agency:

Rahul Gupta (Chair) Bureau for Public Health David Acord on behalf of Rick Hitt WV Public Service Commission Amy Swann WV Rural Water Association Edward Watson (by phone) Canaan Valley Institute Rick Roberts EL Robinson Tim Ball WV Municipal League Pamela Nixon Citizen Representative Michael McCawley WVU School of Public Health Terry Polen WV DEP Jimmy Gianato & Melissa Cross WV DHSEM Evan Hansen WV Rivers Coalition Jeffrey McIntyre WV Business & Industry Council Rebecca Randolph WV Business & Industry Council

Others Present: Luke Mitchell DHHR/BPH/Center for Threat Preparedness John Law Kanawha-Charleston Health Department T.D. Lively WVDHSEM Ken Ward Jr. Gazette-Mail Doug Cummings WVMA Randall Isom WVNG Connie Graytop Lewis WVE Council

Call To Order Chair, Dr. Gupta conducted the introductions, gave opening comments and then asks everyone to take a moment to review the minutes from the December 8, 2014 meeting. Amy Swann mentioned that her last name was misspelled and wanted to correct it by adding an additional “n” to her last name. Dr. Gupta made a motion to approve the correction as well as the minutes from the last meeting with all in favor; all approved. Dr. Gupta shared a copy of the December report and encouraged everyone to review as well as reminded everyone the task to prepare a report that will need to be

Dr. Gupta ask everyone if they had reviewed SB’s 423 & 373 and if anyone had any questions; no questions were ask and also added that if anyone would like a summary of the changes then BPH will make those available.

The Bureau for Public Health will post the minutes on the Division of Homeland Security and Emergency Management’s website as well as create a location on the Bureau for Public Health site.

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Tim Ball commented that the role of the commission should be clarified with respect to role in state bureaucracy. He felt that the report was ignored by the Legislature and feels that it is critical that the role needs to be created and the voice strengthened or the work done by the group goes unnoticed.

Dr. Gupta asks if there were any other comments and there was “no response”.

Presentation by Colonel Isom

Some comments during the presentation below:

● The Water Crisis Response project focused on the LEBC response plan Emergency Response;

● They are a 1/3 of the way into Phase II and looked at the water modeling proposal from WVU and settled on IC Water. They wrote annex HH of the state response plan;

● Looked at various reports. Established themes coordination, communication, emergency water resources;

● Found there were multiple individuals trying to obtain information from CDC at any one time. CDC gets their information from the ATSDR duty officer and from NTP. They also found that there was a break-down between WV EOC and West Virginia organizations. Dr. Gupta would lead the science cell and tailor the council based upon the incident;

● The scientists would be talking to scientists and experts to experts in order to expedite and get answers quicker;

● IC Water was used to mainly determine weaponized chemicals. We need to model constituents like benzene. The model and bell curve can help tell when to shut down intake and when to reopen;

● They are pretty close to setting up and ready to use the model. Whoever will be modeling will require training;

● Goals and objectives total 6. Working on goal 3. Last thing they will do is a table top exercise. There will be exercise trainings in a regions only not the entire state;

● Ready to beta test and will be beta testing with WVAWC as well; ● Ready to go into implementation stage; ● LEPC will be working with LEPC's and CWS will say what they need. The goal is

to respond faster, have picked training sites and be ready to go; ● Evan had question about IC Water as to whether it is publically available and the

National Guard is not sure if it is available to the private sector; ● Will be testing regionally with LEPCs. Science cell will be part of the rewrite of

the state EOP. They decided to go with Science cell because FEMA is going that way; and

● Dr. Gupta said, there will be a similar fed level science cell to make this effective. ● Rick Roberts would like a phase 1 report. ● Shared brief update on NTP - news release in packet. ● There was a brief discussion of Work Groups.

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2015 WORK GROUPS (Includes new members)

Work Group 1 (A Review and assessment of the effectiveness and the quality of information contained in updated Source Water Protection Plans required for certain public water systems by the provisions of sections nine-c, article one, chapter sixteen of this code)

The following changes were voted on by all of the members and all members voted yes to the changes:

● Amy Swann nominated Dr. Gupta as chair of Work Group 1; ● Evan Hansen, Ed Watson and Jeffrey McIntyre volunteered to be in Work Group

1. Dr. Gupta (Chair) (Walt Ivey serving as proxy) Tim Ball Evan Hansen Michael McCawley Jeffrey McIntyre Ed Watson Work Group 2 (A review and assessment of the effectiveness of the legislation enacted during the 2014 Regular Session of the West Virginia Legislature, as it pertains to assisting public water systems in identifying and reacting or responding to the identified potential sources of significant contamination and increasing public awareness and public participation in the emergency planning and response process)

● Evan Hansen volunteered to be added to Work Group 2.

Terry Polen (Chair) Tim Ball Dr. Rahul Gupta (Walt Ivey serving as proxy) Evan Hansen Pam Nixon Amy Swann Work Group 3 (The extent of available financing and funding alternatives which are available to existing public water systems to pursue projects which are designed to create alternate sources of supply or increased stability of supply in the event of a spill, release or contamination event which impairs the water system’s primary source of supply)

● Jeffrey McIntyre volunteered to be added to Work Group 3.

Amy Swann (Chair) Mike Albert (Rick Hitt) Jeffrey McIntyre Rick Roberts Ed Watson

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Work Group 4 (A review and consideration of the recommendations of the U.S. Chemical Safety and Hazard and Investigation Board after its investigation of the Bayer CropScience incident of 2008)

● Rebecca Randolph volunteered to be added to Work Group 4.

Mike McCawley (Chair) Pam Nixon Rebecca Randolph Ed Watson Work Group 5 (Any recommendations or suggestions the study commission may offer to improve the infrastructure of existing public water systems, to provide safe and reliable sources of supplies and to pursue other measures designed to protect the integrity of public water services)

● Jeffrey McIntyre volunteered to be added to Work Group 5.

Rick Hitt (Chair) Tim Ball Jeffrey McIntyre Rick Roberts Amy Swann Dr. Rahul Gupta (Walt Ivey serving as proxy)

The members discussed that there should be a timeline for reports and workgroup meetings and that it will be the Chair’s responsibility to schedule their groups meeting.

Rick Roberts indicated it would be helpful to be able to see/review some of the Sourcewater Plans.

Next Meeting

The members suggested that the next meeting should take place in October and then two additional meetings should be held in December.

Public Comments:

No comments or questions from the public.

Dr. Gupta made a motion to adjourn all members agreed.

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Public Water Supply System Study Commission Meeting Minutes October 16, 2015 at 10:00 am

Governor’s Cabinet & Conference Room-Suite #10

Members Present: Agency: Rahul Gupta (Chair) Bureau for Public Health Rick Roberts E.L. Robinson Engineering Company David Acord WV Public Service Commission Michael McCawley WVU School of Public Health Terry Polen WV DEP Jimmy Gianato WVDHSSEM Brett Morgan on behalf of Jeffrey McIntyre WV Business & Industry Council Edward Watson Canaan Valley Institute Doug Smith on behalf of Tim Ball WV Municipal League Evan Hansen WV Rivers Coalition Amy Swann WV Rural Water Association Edward Watson Canaan Valley Institute Pamela Nixon Citizen Rebecca Randolph (by phone) WV Business & Industry Council

Others Present: Philip Price Neoteric Associates Jim Hatfield Public Norm Ferguson Public Walt Ivey DHHR/BPH/Environmental Health Barbara Taylor DHHR/BPH Brian Skinner DHHR/BPH Toby Wagoner DHHR/BPH Bill Toomey DHHR/BPH/Environmental Health Julie Randolph DHHR/BPH

Call To Order Dr. Gupta (Chair) conducted the introductions, gave opening comments and then asks everyone to take a moment to review the minutes from the August 5, 2015 meeting. The group had a few corrections which were noted and amended copies of the minutes were emailed to all the members. Dr. Gupta made a motion to approve the corrections as well as the minutes from the last meeting. All voted in favor. Dr. Gupta stated that Colonel Isom gave an update on the Source Water Protection Plan at the previous meeting and welcomed Bill Toomey with the WVDHHR Office of Environmental Health Services who gave a presentation on the Source Water Protection Plan (SWPP) updates. (Copies of the SWPP were provided for the members).

● Bill Toomey provided a copy of the Source Water Protection Plan Presentation Talking Points which are attached.

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● Dr. Gupta stated that Work Group 1 had just recently received a few Source Water Protection Plans that had been submitted which are still under review but will have to be completed by July 2016. The Group is planning to meet as they receive these Plans and then will be able to report on the status.

Dr. Gupta (Chair) (Walt Ivey serving as proxy) Tim Ball Evan Hansen Michael McCawley Jeffrey McIntyre Ed Watson

Work Group 2 (A review and assessment of the effectiveness of the legislation enacted during the 2014 Regular Session of the West Virginia Legislature, as it pertains to assisting public water systems in identifying and reacting or responding to the identified potential sources of significant contamination and increasing public awareness and public participation in the emergency planning and response process)

● Terry Polen (Chair) stated that Work Group 2 have met and are working on moving beyond to put together a strong plan relatively rather quickly.

Terry Polen (Chair) Tim Ball Dr. Rahul Gupta (Walt Ivey serving as proxy) Evan Hansen Pam Nixon Amy Swann Work Group 3 (The extent of available financing and funding alternatives which are available to existing public water systems to pursue projects which are designed to create alternate sources of supply or increased stability of supply in the event of a spill, release or contamination event which impairs the water system’s primary source of supply)

● Amy Swan (Chair) reported that their Work Group met on Monday, October 12, 2015 at 1:30 pm at the West Virginia American Water Company and that they looked over their recommendations from last year and it looks like the Bureau for Public Health is going to provide the group with some updated cost information, based upon last year's estimated plan of hundred thousand dollars, and now that they have some plans, can they look at the cost and see if that is reasonable. The next meeting will focus on some ideas for funding.

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Amy Swann (Chair) Rick Hitt (Designee for Mike Albert) Jeffrey McIntyre Rick Roberts Ed Watson


● Mike McCawley (Chair) reported that Work Group 4 is working on outlining a strong end document and that as soon as it is completed, they will send it out to the group for any edits, which will then follow-up with a meeting where they will work together as a group to review and make the proper edits.

Mike McCawley (Chair) David Acord Pam Nixon Terry Polen Rebecca Randolph Ed Watson

Work Group 5 (Any recommendations or suggestions the study commission may offer to improve the infrastructure of existing public water systems, to provide safe and reliable sources of supplies and to pursue other measures designed to protect the integrity of public water services)

● Dave Acord (Chair) reported that Work Group 5 also met on October 12, 2015, at 3:00 pm, also at the West Virginia American Water Company where they discussed a number of items and looked at sheets with the NSDS information, spill reporting, local threats, possible adjustments or amendments to some West Virginia Code sections and also maybe some income and tax credits. These were the bases for their recommendations in 2014 and are re-evaluating some of those and will probably be proposed again as a final recommendation and others may no longer be needed. They will have a meeting soon to hopefully come up with the final recommendations.

Dave Acord (Chair) Tim Ball Jeffrey McIntyre Rick Roberts Amy Swann Dr. Rahul Gupta (Walt Ivey serving as proxy) Evan Hansen

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Discussion A final report has to be submitted to the joint committee by December 15, 2015 and to meet that deadline the Work Groups have to submit their recommendations. Once submitted the group will work together to create a final report for submission to the legislature.

Next Meeting

Dr. Gupta explained to the members that the Commission will have to meet a few more times to finalize the report and then the last meeting of the year may be around three to four hours so everything can be reviewed and decided. Julie Randolph will send out a doodle to decide upon some dates everyone can be available to meet.

Public Comments:

Jim Hatfield directed a question to Work Group 3 in terms of funding for second water sources.

Second source for the Elk River Plant his understanding by looking at the budget for West Virginia American Water is that they budgeted on an order of one million dollars this year to study the Kanawha River for a possible second source as an alternative in case the Elk River suffers another spill. He wanted to bring to everyone's attention of an additional water source that serves three thousand people which is the reservoir at Coon Skin Park.

Norman Ferguson just wanted to thank everyone for the work that they are doing to hopefully prevent anything from happening again with the public water system.

Dr. Gupta thanked them for their comments.


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Public Water System Supply Study Commission Meeting Minutes November 18, 2015 at 10:00 am South Charleston Public Library

Members Present: Agency: Rahul Gupta (Chair) Bureau for Public Health David Acord WV Public Service Commission Amy Swann WV Rural Water Association Edward Watson Canaan Valley Institute Rick Roberts EL Robinson Tim Stranko (by phone on behalf of Tim Ball) WV Municipal League Pamela Nixon Citizen Michael McCawley WVU School of Public Health Terry Polen (by phone) WV DEP Evan Hansen WV Rivers Coalition Jeffrey McIntyre WV Business & Industry Council

Others Present: David Gutman Gazette-Mail Lew Baker Rural Water Association Walt Ivey DHHR/BPH/Environmental Health Barbara Taylor DHHR/BPH Brent Bailey WV Land Trust Terrell Ellis WV Land Trust Toby Wagoner DHHR/BPH Brian Skinner DHHR/BPH Call to Order Chair, Dr. Gupta conducted the introductions, gave opening comments and then asks everyone to take a moment to review the minutes from the October 16, 2015 meeting. Jeff McIntyre made a motion to approve the minutes; Rick Roberts seconded the motion, all voted in favor.

Dr. Gupta asks if there were any other comments; there was “no response”.

Dr. Gupta introduced Terrell Ellis with West Virginia Land Trust, who gave a presentation on “Land Conservation in West Virginia”.



● Walt Ivey reported that Work Group 1 worked on the following recommendations:

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1. Review of the Source Water Protection Plans – This is being done based on the template that was provided to the commission members;

2. Revise a previous recommendation that will require an annual exercise of the protection plan to include an alternative would be for the water system to do an annual review of the protection plan. This would be provided to the Bureau for Public Health;

3. Modify 22-30-14 to clarify what can be released by the Public Water System to the public. Especially information that is already in the public domain;

4. Hazard Rating of chemicals defined and provided to public water systems. This will be investigated further and developed into a recommendation for this workgroup or another one; and

5. Clarify when potential contaminant sources will be updated and provided to public water systems. This would include when the contents in above ground storage tanks were changed or new tanks were installed/permitted.

The first four were identified by Walt Ivey and the fifth one was identified by Jeff McIntyre.

Dr. Gupta (Chair) (Walt Ivey serving as proxy) Tim Ball Evan Hansen Michael McCawley Jeffrey McIntyre Ed Watson Work Group 2 (A review and assessment of the effectiveness of the legislation enacted during the 2014 Regular Session of the West Virginia Legislature, as it pertains to assisting public water systems in identifying and reacting or responding to the identified potential sources of significant contamination and increasing public awareness and public participation in the emergency planning and response process)

● In an attempt to clarify the effectiveness and efficiency of the legislation, the workgroup has separated this question into four more specifically identifiable and quantifiable questions. Additionally, the workgroup has expanded the charge to beyond the 2014 legislation to the 2015 legislation and the proposed legislation. A 12 page strawman was sent out on November 15, 2015 for discussion within the group. A teleconference meeting is scheduled for December 1 to, it is hoped, finalize the comments.

Terry Polen (Chair) Tim Ball Dr. Rahul Gupta (Walt Ivey serving as proxy) Evan Hansen Pam Nixon Amy Swann

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Work Group 3 (The extent of available financing and funding alternatives which are available to existing public water systems to pursue projects which are designed to create alternate sources of supply or increased stability of supply in the event of a spill, release or contamination event which impairs the water system’s primary source of supply)

● The Work Group decided that the main recommendation would be to ask the Legislature to provide two million dollars per year to provide assistance for water systems to continue updating their Source Water Protection Plans as required by law.

● There was discussion on making a recommendation to stagger the submittals of the updated Source Water Protection Plans. The updated plans are due every three years. It would be more manageable to have the submittal of the updated Source Water Protection Plans evenly over the three year period instead of all within one year. The code will be reviewed and a recommendation will be made to allow for the staggering of the updated protection plans.

● Discussion as to what can be done to provide priority funding opportunities for source water protection projects. There may need to be some discussion with the Infrastructure and Jobs Development Council (IJDC) to elevate source water protection projects so that they can receive funding assistance. Jeff McIntyre made the comment that this is also an inequality to the customers of the privately owned water systems because they are not eligible to receive IJDC funding which could lower the cost to those customers. This is another area where the rate payers from a privately owned water system may have to pay more than a publically owned water system.

Amy Swann (Chair) Dave Acord (Designee for Mike Albert) Jeffrey McIntyre Rick Roberts Ed Watson


● Work Group 4 met on November 19, 2015 at the Law School in Morgantown. They are looking over a strawman they sent out with two recommendations in it as follows: o The first being to adopt a chemical release prevention program that the

committee had worked up and is available to look at, and the second one; o Was that the chemical safety board said that they thought that most of the

recommendations could be adopted without any legislation necessary.

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Mike McCawley (Chair) Pam Nixon Rebecca Randolph Ed Watson

Work Group 5 (Any recommendations or suggestions the study commission may offer to improve the infrastructure of existing public water systems, to provide safe and reliable sources of supplies and to pursue other measures designed to protect the integrity of public water services)

● Dave Acord (Chair) reported that Work Group 5 held its last meeting on November 5, 2015, to continue discussions on MSDSs, Spill Reporting, Mobile Threats, and Income Tax Credits for source water protection. They have drafted language for each of the recommendations and their next meeting is scheduled for November 30, 2015, at 1:30pm at the Public Service Commission offices in Charleston, to finalize recommendations. Copies of all meeting minutes along with recommendations will then be forwarded to Dr. Gupta for consideration by the PWSSSC.

David Acord (Chair) Tim Ball Jeffrey McIntyre Rick Roberts Amy Swann Dr. Rahul Gupta (Walt Ivey serving as proxy) Evan Hansen

Next Meeting

The members discussed that the next meeting will take place on December 4, 2015.

Public Comments:

No comments or questions from the public.


22

Public Water System Supply Study Commission Meeting Minutes December 4, 2015 at 12:30 pm

Governor’s Cabinet & Conference Room-Suite #10 Members Present: Agency: Rahul Gupta (Chair) Bureau for Public Health David Acord WV Public Service Commission Michael McCawley WVU School of Public Health Terry Polen WV DEP Melissa Cross on behalf of Jimmy Gianato WVDHSSEM Jeffrey McIntyre WV Business & Industry Council Edward Watson Canaan Valley Institute Tim Ball WV Municipal League Evan Hansen WV Rivers Coalition Amy Swann WV Rural Water Association Pamela Nixon Citizen Representative Rebecca McPhail WV Business & Industry Council Others Present: Jennifer Haymann WV American Water Terrell Ellis WV Land Trust Norm Ferguson Public Walt Ivey DHHR/BPH/Environmental Health Barbara Taylor DHHR/BPH Brian Skinner DHHR/BPH John D. Law KCHD Julie Randolph DHHR/BPH Betty Rivard Volunteer Advocate Conni Gratop Lewis WV Environmental Council Angie Rosser WV Rivers Coalition Autumn Bryson WV Rivers Coalition Call to Order Chair, Dr. Gupta conducted the introductions, gave opening remarks, and then asks everyone to take a moment to review the minutes from the November 18, 2015 meeting. The group had no corrections, Jeff McIntyre made a motion to approve the minutes, David Acord second, all voted in favor by saying aye.

2015 WORK GROUPS Work Group 1 (A Review and assessment of the effectiveness and the quality of information contained in updated Source Water Protection Plans required for certain public water systems by the provisions of sections nine-c, article one, chapter sixteen of this code) Walt Ivey presented the following recommendations for Work Group 1.

23

Recommendation 1:

Require either an annual evaluated and documented exercise of the source water protection plan or a documented annual review and update of the source water protection plan, with Utility reporting this to the Bureau for Public Health.

Recommendation 2:

Modify §22-30-14 to clarify what can be released by the Public Water System and to make it permissible to release information that is already in the public domain.

Recommendation 3:

Department of Environmental Protection to notify downstream water utilities if there is a change in substance and/or a substantive change within an above ground storage tank as outlined in §22-30-9 (b) 1-6. Such notification is to be made as soon as possible.

Evan Hansen made a motion to accept the recommendations, Tim Ball second the motion; all were in favor by saying aye. Dr. Gupta (Chair) (Walt Ivey serving as proxy) Tim Ball Evan Hansen Michael McCawley Jeffrey McIntyre Ed Watson Work Group 2 (A review and assessment of the effectiveness of the legislation enacted during the 2014 Regular Session of the West Virginia Legislature, as it pertains to assisting public water systems in identifying and reacting or responding to the identified potential sources of significant contamination and increasing public awareness and public participation in the emergency planning and response process). Mr. Polen suggested and the members agreed that they would like more time to review and decide by the next meeting, due to the fact that there are currently no recommendations and that the review will help the members decide whether or not this information will be included in the report. Terry Polen (Chair) Tim Ball Dr. Rahul Gupta (Walt Ivey serving as proxy) Evan Hansen Pam Nixon Amy Swann

24

Work Group 3 (The extent of available financing and funding alternatives which are available to existing public water systems to pursue projects which are designed to create alternate sources of supply or increased stability of supply in the event of a spill, release or contamination event which impairs the water system’s primary source of supply). Amy Swann presented the following recommendations for Work Group 3. Recommendation 1: Advance a recommendation that the full Commission recommends a continuing $2 million dollar appropriation to the Department of Health and Human Resources, Bureau for Public Health for continuation of their source water protection efforts and in providing grant monies to systems as they complete their Source Water Protection Plans and begin their statutorily required 3 year updates. Recommendation 2:

Advance a recommendation that the West Virginia Legislature amend West Virginia Code 16-1-9c (f) as follows: o (f) A public water utility is required to file an updated plan, in accordance

with the provisions of this section, as follows:

Whenever there is a substantial change in the potential sources of significant contamination within the identified zone of critical concern; and

Pursuant to a schedule contained in a legislative rule proposed by the Secretary and promulgated pursuant to article three, chapter twenty-nine-A of the Code.

o (g) Any public water utility required to file a complete or updated plan in accordance with the provisions of this section shall review any source water protection plan it may currently have on file with the bureau and update it to ensure it conforms with the requirements of subsection (b) of this section on or before July 1, 2016.

o (h) The commissioner's authority in reviewing and monitoring compliance with a source water protection plan may be transferred by the bureau to a nationally accredited local board of public health.

o (i) The Secretary is authorized to propose legislative rules for promulgation pursuant to article three, chapter twenty-nine-A of the Code to implement the provisions of this section.

Recommendation 3:

Advance a recommendation that the West Virginia Infrastructure and Jobs Development Council amend its preliminary project ranking and/or scoring structure to add a source water protection scoring in the Bureau for Public Health’s section. It is also recommended to be added to the Office of Environmental Health Services District Review for Infrastructure Council Projects. This will assist in placing a particular emphasis on water projects seeking funding for a source water protection project.

25

Dr. Gupta asks for a motion to approve Recommendations 1 and 3; the members were all in favor by saying aye. Recommendation 2 was discussed during the afternoon working session. Amy Swann (Chair) Rick Hitt (Mike Albert) Jeffrey McIntyre Rick Roberts Ed Watson Work Group 4 (A review and consideration of the recommendations of the U.S. Chemical Safety and Hazard and Investigation Board after its investigation of the Bayer CropScience incident of 2008) Mike McCawley (Chair) reported the following recommendation for Work Group 4: Recommendation 1:

Further evaluation is needed. Dr. Gupta asks for a motion to accept the recommendation to further review the U.S. Chemical Safety and Hazard Investigation Board after its investigation of the Bayer CropScience incident of 2008. All members were in favor by saying aye. Mike McCawley (Chair) Pam Nixon Rebecca Randolph Ed Watson Work Group 5 (Any recommendations or suggestions the study commission may offer to improve the infrastructure of existing public water systems, to provide safe and reliable sources of supplies and to pursue other measures designed to protect the integrity of public water services) Dave Acord (Chair) reported the following recommendations for Work Group 5: Recommendation 1:

The Legislature should clarify that the utility doesn’t have an implied duty to complete gaps in information on Material Safety Data Sheets (MSDSs) that are provided/ submitted. Senate Bill 373 (2014) previously required MSDS information to be submitted with the Spill Prevention Response Plan, but changes made in Senate Bill 423 (2015) removed this requirement. It is our recommendation that the legislation be amended to require the MSDS information be provided with the Spill Prevention and Response Plans. If there is missing information, the entity submitting the MSDS should have the burden of providing additional information. The Department of Environmental Protection

26

(DEP) is encouraged to work with a national toxicology group to assist with this issue and to enforce the law. Furthermore, an active a current and live web link shall be provided should be established by DEP to so MSDS that information is available at a central repository available to public utilities. West Virginia Code § 22-30-10 (a) should be amended to require notification to any downstream public water systems.

Recommendation 2:

The group recommends that all spills must immediately, upon discovery, be relayed to any potentially impacted Public Water Systems (PWS) and to the Bureau for Public Health (BPH). We further recommend that such notification be made via an automated system which is interfaced with existing spill notification systems (spill reporting hotlines), with emergency response systems (county 911 systems) and with existing geographic information system (GIS) and databases (such as those operated by the Division of Homeland Security and Emergency Management, county 911 systems and the WV DEP). By efficiently utilizing existing GIS data, the spill location will may be cross referenced with a data base of PWS information and the water systems which may potentially be impacted can be quickly determined and automatically notified.

The automated reporting system should, at a minimum, provide information on the precise location of the spill, the date and time of occurrence, the material(s) released and the stream(s) potentially impacted. Systems to meet this requirement do not currently exist and could be quite expensive to develop and implement. Automated notifications during an emergency event could potentially not be received and could lead to further delays in response. In addition many reports received related to spills are incomplete and in many cases inaccurate based on initial reporting. Additional training/scripts for those taking the calls may be beneficial to obtain consistent information for each event. The group makes the recommendation that all spills must be reported with reference to standardized GPS coordinate systems. We further, recommend that the system used be based upon the widely used and well-understood Latitude/Longitude system with location data obtained from a GPS receiver. Furthermore, correction notices will be issued, as necessary, and confirmation of the response and confirmation of the resolution shall be distributed.

Recommendation 3:

The Work Group discussed mobile threats which were not specifically addressed in SB373 (2014) or Senate Bill 423 (2015). Mobile threats pose as great or greater threat to public water systems as fixed facilities. Due to the dynamic nature of chemicals moved in transportation, this presents a difficult challenge to having complete SWPPs. Local emergency Planning Committees (LEPCs) and local emergency responders are an invaluable resource to public water systems and should be consulted in the development of SWPPs. LEPCs have information such as commodity flow studies, hazard analysis, transportation routes and other key information that is vital to public water system plan development. The Department of Homeland Security and Emergency Management (DHSEM) shall

27

provide information, that they are not statutorily prohibited from providing to the public, to addressing all these efforts.

Recommendation 4:

The Legislature considers legislation for income tax credits for landowners for source water protection.

Similar programs have succeeded in many states, including Maryland (Md. Code § 10-723) and Virginia (Va. Code Ann. § 58.1-510-513).

Recommendations 1 and 2 will need further discussion at the afternoon working session. Dr. Gupta asks for a motion to accept the Recommendations for 3 with the amended language and the adoption for Recommendation 4. All members were in favor by saying aye. Dave Acord (Chair) Tim Ball Jeffrey McIntyre Rick Roberts Amy Swann Dr. Rahul Gupta (Walt Ivey serving as proxy) Evan Hansen

Discussion A final report has to be submitted to the joint committee by December 15, 2015 and to meet that deadline the work groups have to submit their recommendations to BPH prior to that date. Next Meeting Dr. Gupta suggested that the group meet soon so that the draft report can be voted on. After a brief discussion Friday, December 11, 2015 at 1:00 pm at the Public Service Commission was decided on. Members have the choice of attending in person or by conference call and the conference phone number that has been provided for every meeting will be the one used for those who will need to participate by phone. This should be a brief meeting due to the fact that the deadline for the report is due to by December 15th to the Legislature. Public Comments: Norman Ferguson stated that he is a member of the public and continues to follow the Public Water System Supply Study Commission meetings to keep updated on the progress of the public water system so that in the future there will be no further drinking water issues. Dr. Gupta thanked him for his comments. Dr. Gupta, due to another meeting, delegated the Chair position to Commission Member Amy Swann. Ms. Swann continued the discussion among Commission members in regard to the recommendations.

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Following extensive discussions, Commission members, edited, voted on, and accepted recommendations that are reflected in the final report. Ms. Swann entertained a motion to adjourn, all members were in favor by saying aye.

29

Appendix B

System ID System Name County Planning and Development Regions (1-11)

DEP Watershed Group (1-5)

Type System

Population

WV3300508 HAMMOND PSD BROOKE 11 1 SW 2,186

WV3300512 FOLLANSBEE HOOVERSON HEIGHTS

BROOKE 11 1 SW 5,702

WV3300516 WEIRTON AREA WATER BOARD

BROOKE 11 1 SW 22,694

WV3301504 CHESTER HANCOCK 11 1 SW 3,119

WV3301811 RIPLEY CITY OF JACKSON 5 1 SW 5,078

WV3302603 CAMERON WATER MARSHALL 10 1 SW 1,052

WV3303516 WHEELING WATER OHIO 10 1 SW 22,222

WV3304307 HUGHES RIVER WATER RITCHIE 5 1 SW 4,278

WV3304405 SPENCER WATER DEPT ROANE 5 1 SW 5,002

WV3304802 MIDDLEBOURNE WATER WORKS

TYLER 5 1 SW 1,267

WV3304803 SISTERSVILLE MUNICIPAL WATER

TYLER 5 1 SW 1,892

WV3305205 PINE GROVE WATER WETZEL 10 1 SW 593

WV3305402 CLAYWOOD PARK PSD WOOD 5 1 SW 7,695

WV3300101 BELINGTON TOWN OF BARBOUR 7 2 SW 2,153

WV3300104 PHILIPPI CITY OF BARBOUR 7 2 SW 3,281

WV3300901 WEST UNION TOWN OF DODDRIDGE 6 2 SW 1,895

WV3301705 CLARKSBURG WATER BOARD

HARRISON 6 2 SW 18,310

WV3301714 LUMBERPORT TOWN OF

HARRISON 6 2 SW 1,788

WV3301721 SHINNSTON CITY OF HARRISON 6 2 SW 4,903

WV3302104 WVAW - WESTON LEWIS 7 2 SW 11,436

WV3302502 FAIRMONT CITY OF MARION 6 2 SW 29,170

WV3302503 FAIRVIEW TOWN OF MARION 6 2 GU 834

WV3302515 MONONGAH TOWN OF MARION 6 2 SW 3,171

WV3303111 MORGANTOWN UTILITY BOARD

MONONGALIA 6 2 SW 56,209

WV3303908 KINGWOOD WATER BOARD

PRESTON 6 2 SW 3,102

WV3303912 PRESTON COUNTY PSD 1

PRESTON 6 2 SW 4,043

WV3303914 ROWLESBURG WATER WORKS

PRESTON 6 2 SW 707

WV3303917 TERRA ALTA WATER WORKS

PRESTON 6 2 GU 1,488

WV3304204 HARMAN TOWN OF RANDOLPH 7 2 GU 188

WV3304202 BEVERLY TOWN OF RANDOLPH 7 2 SW 2,475

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Type System

Population

WV3304203 ELKINS CITY OF RANDOLPH 7 2 SW 8,270

WV3304209 MILL CREEK WATER DEPT

RANDOLPH 7 2 SW 976

WV3304605 TAYLOR COUNTY PSD TAYLOR 6 2 SW 1,322

WV3304701 DAVIS WATER WORKS TUCKER 7 2 SW 878

WV3304704 HAMRICK PSD TUCKER 7 2 SW 1,643

WV3304707 PARSONS CITY OF TUCKER 7 2 SW 1,512

WV3304709 THOMAS CITY OF TUCKER 7 2 SW 672

WV3304711

TIMBERLINE FOUR SEASON RESORT MANAGEMENT

TUCKER 7 2 GU 591

WV3304902 BUCKHANNON WATER BOARD

UPSHUR 7 2 SW 8,697

WV3300202 BERKELEY CO P S W D-BUNKER HILL

BERKELEY 9 3 GU 26,547

WV3300212 MARTINSBURG CITY OF BERKELEY 9 3 GU 15,650

WV3300218 BERKELEY COUNTY PSWD-POTOMAC RIVER

BERKELEY 9 3 SW 22,396

WV3301204 PETERSBURG TOWN OF GRANT 8 3 SW 2,841

WV3301205 MOUNTAIN TOP PSD GRANT 8 3 SW 2,088

WV3301405 ROMNEY WATER DEPT HAMPSHIRE 8 3 SW 1,948

WV3301412 CENTRAL HAMPSHIRE PSD GREEN SPRING

HAMPSHIRE 8 3 GU 1,172

WV3301601 MOOREFIELD MUNICIPAL WATER

HARDY 8 3 SW 2,689

WV3301613 HARDY COUNTY PSD BAKER

HARDY 8 3 SW 150

WV3301979 Deerfield Village Subdivision

JEFFERSON 9 3 GU 99

WV3301905 CHARLES TOWN UTILITIES

JEFFERSON 9 3 SW 14,488

WV3301912 CORPORATION OF HARPERS FERRY


WV3301933 CORPORATION OF SHEPHERDSTOWN


WV9919068 BURR INDUSTRIAL PARK JEFFERSON 9 3 GU 2,370

WV3302915 KEYSER CITY OF MINERAL 8 3 SW 5,202

WV3302921 PIEDMONT MUNICIPAL WTR WKS

MINERAL 8 3 SW 775

WV3302928 FRANKFORT PSD MINERAL 8 3 SW 5,468

WV3303301 BERKELEY SPRINGS CITY OF

MORGAN 9 3 SW 3,629

WV3303308 PAW PAW WATER WORKS

MORGAN 9 3 SW 552

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Type System

Population

WV3303602 FRANKLIN MUNICIPALITY OF

PENDLETON 8 3 SW 1,732

WV3303611 PENDLETON CO PSD-UPPER TRACT

PENDLETON 8 3 GU 448

WV3303613 PENDLETON CO PSD(BRANDYWINE)

PENDLETON 8 3 SW 804

WV3300315 BOONE RALEIGH P S D BOONE 3 4 SW 1,317

WV3300402 FLATWOODS CANOE RUN PSD

BRAXTON 7 4 SW 4,143

WV3300404 SUGAR CREEK PSD BRAXTON 7 4 SW 1,191

WV3300406 WVAW- GASSAWAY BRAXTON 7 4 SW 2,127

WV3300408 BURNSVILLE PUBLIC UTILITY

BRAXTON 7 4 SW 789

WV3300701 GRANTSVILLE MUNICIPAL

CALHOUN 5 4 SW 841

WV3300801 CLAY WATER DEPT CLAY 3 4 SW 1,341

WV3300806 CLAY-ROANE PSD (PROCIOUS DISTRICT)

CLAY 3 4 SW 2,162

WV3301004 ARMSTRONG PSD FAYETTE 4 4 SW 2,318

WV3301024 MOUNT HOPE WATER FAYETTE 4 4 SW 1,955

WV3301029

WVAWC MONTGOMERY DISTRICT

FAYETTE 4 4 SW 4,724

WV3301037 KANAWHA FALLS PSD FAYETTE 4 4 SW 2,379

WV3301046

WVAWC NEW RIVER REGIONAL WTR TRTMT PLT

FAYETTE 4 4 SW 25,760

WV3301104 GLENVILLE UTILITY GILMER 7 4 SW 2,395

WV3301307 LEWISBURG GREENBRIER 4 4 SW 10,050

WV3301315 ALDERSON WATER GREENBRIER 4 4 SW 2,680

WV3302009 CEDAR GROVE COMMUNITY OF

KANAWHA 3 4 SW 1,090

WV3302016 WVAWC-KANAWHA VALLEY DIST

KANAWHA 3 4 SW 198,521

WV3302031 ST ALBANS WATER KANAWHA 3 4 SW 13,265

WV3302205 LINCOLN PSD LINCOLN 2 4 SW 4,981

WV3302801 ATHENS TOWN OF MERCER 1 4 SW 4,802

WV3302804 BLUEWELL PSD MERCER 1 4 SW 6,135

WV3302813

GREEN VALLEY GLENWOOD PSD BULLTAIL

MERCER 1 4 SW 1,869

WV3302835 WVAWC BLUEFIELD DISTRICT

MERCER 1 4 SW 12,174

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Type System

Population

WV3302849

GREEN VALLEY GLENWOOD PSD GLENWOOD

MERCER 1 4 SW 5,775

WV3302852 POCAHONTAS WATER SYSTEM

MERCER 1 4 SW 1,933

WV3303206 RED SULPHUR PSD MONROE 1 4 SW 5,352

WV3303401 RICHWOOD WATER DEPT

NICHOLAS 4 4 SW 2,940

WV3303402 CRAIGSVILLE PSD NICHOLAS 4 4 SW 4,723

WV3303403 NETTIE LEIVASY PSD NICHOLAS 4 4 SW 3,151

WV3303404 SUMMERSVILLE MUNICIPAL WATER

NICHOLAS 4 4 SW 5,746

WV3303405 WILDERNESS PSD NICHOLAS 4 4 SW 4,475

WV3303802 CASS SCENIC RAILROAD POCAHONTAS 4 4 SW 1,023

WV3303803 MARLINTON TOWN OF POCAHONTAS 4 4 SW 1,400

WV3303808 CHEAT MOUNTAIN WATER SYSTEM

POCAHONTAS 4 4 SW 1,867

WV3303812 POCAHONTAS COUNTY PSD

POCAHONTAS 4 4 GU 557

WV3304005 HURRICANE CITY OF PUTNAM 3 4 SW 8,266

WV3304011 PUTNAM P S D PUTNAM 3 4 SW 21,719

WV3304104 BECKLEY WATER COMPANY

RALEIGH 1 4 SW 49,058

WV3304407 WALTON PSD ROANE 5 4 SW 1,925

WV3304507 BIG BEND PSD SUMMERS 1 4 SW 1,039

WV3304513 WVAWC BLUESTONE PLANT

SUMMERS 1 4 SW 26,499

WV3305103 COWEN PSD WEBSTER 4 4 SW 2,518

WV3305104 WVAW - WEBSTER SPRINGS

WEBSTER 4 4 SW 1,692

WV3300608 WVAWC - HUNTINGTON DIST

CABELL 2 5 SW 86,827

WV3300609 MILTON WATER CABELL 2 5 SW 4,883

WV3302203 WEST HAMLIN CITY OF LINCOLN 2 5 SW 2,964

WV3302331 LOGAN WATER BOARD CITY OF

LOGAN 2 5 SW 4,505

WV3302336 MAN WATER WORKS LOGAN 2 5 SW 1,008

WV3302347 BUFFALO CREEK PSD LOGAN 2 5 SW 2,829

WV3302357 LOGAN CO PSD-GREENVILLE SYSTEM

LOGAN 2 5 SW 3,960

WV3302364 LOGAN COUNTY PSD - NORTHERN REGIONAL

LOGAN 2 5 SW 15,715

WV3302434 MCDOWELL COUNTY MCDOWELL 1 5 GU 1,632

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Type System

Population

PSD BARTLEY

WV3302435 MCDOWELL COUNTY PSD BERWIND

MCDOWELL 1 5 GU 863

WV3303002 GILBERT WATER WORKS

MINGO 2 5 SW 1,145

WV3303003 KERMIT WATER WORKS MINGO 2 5 SW 1,424

WV3303005 MATEWAN WATER WORKS

MINGO 2 5 SW 2,237

WV3303009 WILLIAMSON UTILITY BOARD

MINGO 2 5 SW 4,213

WV3303029 MINGO COUNTY PSD - NAUGATUCK

MINGO 2 5 SW 4,654

WV3305004 FORT GAY WATER WORKS

WAYNE 2 5 SW 2,287

WV3305007 WAYNE WATER TOWN OF

WAYNE 2 5 SW 5,684

WV3305009 KENOVA MUNICIPAL WATER

WAYNE 2 5 SW 9,254

WV3305516 OCEANA COMMUNITY OF

WYOMING 1 5 SW 4,410

WV3305517 PINEVILLE MUNICIPAL WYOMING 1 5 SW 2,945

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Appendix C Public Water System Supply Study Commission

Work Group Membership

Work Group 1 (A review and assessment of the effectiveness and quality of information contained in

updated Source Water Protection Plans required for certain public water systems by

the provisions of sections nine-c, article one, chapter sixteen of this code)

Chair Rahul Gupta, MD, MPH, FACP Commissioner and State Health Officer Bureau for Public Health

Michael McCawley, PhD Assistant Professor WVU School of Public Health

Walt Ivey (serving as proxy for Dr. Gupta)

Office of Environmental Health Services Bureau for Public Health

Jeffrey McIntyre, President West Virginia American Water Company

Tim Ball Morgantown Utility Board

Ed Watson Canaan Valley Institute

Evan Hansen West Virginia Rivers Coalition

Work Group 2 (A review and assessment of the effectiveness of the legislation enacted during the 2014

Regular Session of the West Virginia Legislature, as it pertains to assisting public

water systems in identifying and reacting or responding to the identified potential

sources of significant contamination and increasing public awareness and public

participation in the emergency planning and response process)

Chair Dr. Terry Polen WV Department of Environmental Protection


Rahul Gupta, MD, MPH, FACP Commissioner and State Health Officer Bureau for Public Health

Pam Nixon Citizen Member

Walt Ivey (serving as proxy for Dr. Gupta) Office of Environmental Health Services Bureau for Public Health

Amy Swann, Executive Director WV Rural Water Association


35

Work Group 3 (The extent of available financing and funding alternatives which are available to

existing public water systems to pursue projects which are designed to create alternate

sources of supply or increased stability of supply in the event of a spill, release or

contamination event which impairs the water system’s primary source of supply)

Chair Amy Swann Executive Director WV Rural Water Association

Rick Roberts E. L .Robinson Engineering Company

David L. Acord, II (Designee for Mike Albert) Public Utilities Director Water & Wastewater Division WV Public Service Commission


Jeffrey McIntyre President West Virginia American Water Company

Work Group 4 (A review and consideration of the recommendations of the U.S. Chemical Safety and Hazard and Investigation Board after its investigation of the Bayer Crop Science incident of 2008)

Chair Michael McCawley, PhD Assistant Professor WVU School of Public Health

Rebecca McPhail, President West Virginia Manufacturers Association

Pam Nixon Citizen Member


Dr. Terry Polen (designee) WV Department of Environmental Protection

36

Work Group 5 (Any recommendations or suggestions the study commission may offer to improve the

infrastructure of existing public water systems, to provide safe and reliable sources of

supplies and to pursue other measures designed to protect the integrity of public water

services)

Chair David L. Acord, II Public Utilities Director Water & Wastewater Division Public Service Commission of WV

Amy Swann Executive Director WV Rural Water Association


Rahul Gupta, MD, MPH, FACP Commissioner and State Health Officer Bureau for Public Health

Jeffrey McIntyre President West Virginia American Water Company

Walt Ivey (serving as proxy for Dr. Gupta) Office of Environmental Health Services Bureau for Public Health

Rick Roberts E. L .Robinson Engineering Company


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Appendix D

PWSSSC Work Group 1 Recommended revisions to §22-30-14

December 4, 2015

§22-30-14. Public access to information.

(a) The public shall have access to all documents and information submitted to the

department pursuant to this article, subject to the limitations contained in the state

Freedom of Information Act, article one, chapter twenty-nine-b of this code, or any

information designated by the Division of Homeland Security and Emergency

Management as restricted from public release pursuant to subsection (c) of this section.

Trade secrets, proprietary business information and information designated by the

Division of Homeland Security and Emergency Management as restricted from public

release pursuant to subsection (c) of this section shall be secured and safeguarded by the

department. Such information or data shall not be disclosed to the public or to any firm,

individual or agency other than officials or authorized employees or representatives of a

state, or federal, or local agency implementing the provisions of this article or any other

applicable law related to releases of fluid from aboveground storage tanks that impact

the state’s water resources or related to source water protection planning. Any person

who violates the provisions of this section makes any unauthorized disclosure of such

confidential information or data is guilty of a misdemeanor and, upon conviction

thereof, may be fined not more than $1,000 or confined in a regional jail facility for not

more than twenty days, or both.

(b) A list of the potential sources of significant contamination contained within the zone

of critical concern or zone of peripheral concern as provided by the Bureau for Public

Health, working in conjunction with the department and the Division of Homeland

Security and Emergency Management may only be disclosed to the extent consistent

with the protection of trade secrets, confidential business information and information

designated by the Division of Homeland Security and Emergency Management as

described above. The exact location of the contaminants, size, and substances stored in

aboveground storage tanks within the zone of critical concern or zone of peripheral

concern is not subject to public disclosure in response to a Freedom of Information Act

request under article one, chapter twenty-nine-b of this code. However, the exact

38

location, size, and substances stored in aboveground storage tanks location,

characteristics and approximate quantities of potential sources of significant

contamination within the zone of critical concern or zone of peripheral concern shall be

made known to one or more designees of the public water utility, and shall be

maintained in a confidential manner by the public water utility. In the event of a release

to waters of the state that could affect a public water supply, information about the

release shall be promptly made available to any emergency responders responding to

the site of a spill or release and the general public shall be promptly notified in the event

of a chemical spill, release or related emergency by the Director of Homeland Security

and Emergency Management.

(c) The Director of Homeland Security and Emergency Management may promulgate

emergency rules and shall propose legislative rules, pursuant to article three, chapter

twenty-nine-a of this code to effectuate the provisions of this section. However, these

rules cannot restrict public access to information that is already subject to public

disclosure under any other state or federal statute, including but not limited to the

federal Clean Water Act, Surface Mining Control and Reclamation Act, Resource

Conservation and Recovery Act, and their state counterparts.

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Appendix E

Report from Work Group 2

Work Group 2 of the Public Water System Supply Study Commission was tasked

with answering this question. To that end, the committee used the following to break

the overall question into pieces to attempt to attain consensus regarding the question

asked:

A review and assessment of the effectiveness of the legislation enacted during

the 2014 Regular Session of the West Virginia Legislature, as it pertains to assisting

public water systems in identifying and reacting or responding to the identified

potential sources of significant contamination and increasing public awareness and

public participation in the emergency planning and response process.

Members:

Dr. Terry Polen (Chair)

Tim Ball

Walt Ivey (proxy for Dr. Rahul Gupta)

Evan Hansen

Pam Nixon

Amy Swann

a) We are asked to review and assess the 2014 legislation (SB373). However, because the legislature passed significant modifications to the 2014 legislation during the 2015 Regular Session (SB423), and because of proposals already submitted for consideration by the 2016 Legislature, should we broaden our scope to include consideration of SB423 and the 2016 proposals?

b) In what way(s) can we/should we indicate to the legislature the effectiveness (or lack thereof) of the current/future processes

I. Are there quantitative methods that can be brought to bear? II. How do we even define ‘effectiveness’?

c) Does the 2014/2015 legislation help the public water supply systems to ID/react/respond to issues? [if not, why not, and how can we propose to fix it?]

d) Does the 2014/2015 legislation help the public awareness and participation? [if not, why not, and how can we propose to fix it?]

The management guru Peter Drucker once noted that effectiveness and efficiency

are divergent terms by his phrase: “Efficiency is doing things right; effectiveness is doing

the right things.” (Drucker, Peter F., The Effective Executive. London: Heinemann

Studies in Management, 1967). In light of Drucker’s guidance, the committee

considered both the “effectiveness” and “efficiency,” ‘are we doing things right?’ and ‘are

we doing the right things?’ in an attempt to answer the question.

40

Early in the committee review of SB373, it was determined that it would be of

little value to limit the consideration to that within the assigned questions, therefore

SB423 was amended into the topic.

Consideration of each of the above topics included background analysis,

including that delineated below:

The Aboveground Storage Tank (AST) Acts (SB373 and SB423) have made

considerable changes to the regulatory landscape of the state and certain organizations.

The following is a consideration of those impacts that was used within the consideration

of the committee.

On January 9, 2014, the DEP investigated citizen reports of a licorice smell. The

investigation revealed that more than 10,000 gallons of crude methylcyclohexane

methanol (MCHM) had spilled into the Elk River from the Freedom Industries tank site.

Eventually, the Governor declared a state of emergency for nine (9) counties affected by

the spill:

Kanawha

Putnam

Boone

Jackson

Lincoln

Roane

Clay

Logan

Cabell

A ‘Do Not Use’ ban was issued for approximately 93,000 West Virginia American

Water customers affecting approximately 300,000 people. Schools and restaurants

within the impacted area were ordered closed.

The aftermath of the spill resulted in SB373, which was passed unanimously. The

bill took effect on June 6, 2014. The DEP developed a website, created guidance, and

began tank registration under the auspices of this bill with the Electronic Submittal

System. Registration began on June 10, 2014, and by September 1, 2014, all NPDES

individual permit holders and NPDES general permit holders within the zone of critical

concern (ZCC) (22-30-4) were required to have applied. All tanks were to be registered

by October 1, 2014 and the Spill Prevention Response Plans required by SB373 had to be

submitted by December 3, 2014. The inspections of said tanks with their incumbent

certification were required to be completed by a qualified person by January 1, 2015 (22-

30-6).

41

In 2015, the Legislature passed SB423 which substantially modified the 2014 AST

Act. The legislation was signed by the Governor on March 27, 2015. This bill

substantially modified the regulatory scheme. For example, while aboveground storage

tanks were still defined as 1,320 gallons or greater, certain tanks were excluded from the

regulation including: water tanks, mobile tanks (365 vs. 60 days), shipping containers,

boats, pools, process vessels, food, empty tanks in inventory, pipelines, and

transformers. The term ‘first point of isolation’ was defined, as well as the term ‘process

vessel’. Tank levels were created/established. Level One tanks are those located within

a Zone of Critical Concern (ZCC), contain a listed hazardous substance, or have a

capacity of 50,000 gallons or more, regardless of location or contents. Level Two tanks

are those located within a Zone of Peripheral Concern (ZPC) that are not Level One

tanks.

Other definitional changes included a release into the water of the state or out of

secondary containment and the creation of a ZPC (10-hour-time-of-travel of water to an

intake, an additional 5-hour-time-of-travel beyond the ZCC).

There is now a tiered approach to the regulatory structure of tanks within the

state, along with various annual operation fees. Also, requirements pertaining to the

management and control of tanks may be incorporated into individual or site specific

permits or plans issued or approved under other regulatory programs administered by

DEP. Examples include individual NPDES permits or Groundwater Protection Plan

(GPP).

Each regulated tank must be inspected according to a frequency of inspections

established by legislative rule. Additionally, Spill Prevention Response Plans (SPRP)

that are now updated every 5 years instead of every 3 years as previously required by

SB373. Also in lieu of developing a SPRP, a tank owner may certify that it is subject to a

Groundwater Protection Plan (GPP) or Spill Prevention Response Plan (SPCC). The

SPCC program is regulated under federal law.

Section 22-30-10 requires certain notice to local governments and water

companies under SB373 by the owner or operator of a regulated AST. This entity must

supply the type and quantity of material stored to the water company. This has

limitations that need to be examined in relation to not only trade secrets, but also to

restricted information under the purview of Homeland Security. Public access to

information is an issue that needs robust consideration in that release of certain

information may be subject to fines of $5,000. To this end, this workgroup concurs with

the recommendations of workgroup one contained in Appendix A of this document. The

list of potential sources of significant contamination is being compiled and maintained

by the WV Bureau of Public Health in conjunction with the WV Department of

Environmental Protection, and the WV Division of Homeland Security, and is being

provided to water utilities for review and refinement, and for inclusion in Source Water

Protection Plans.

42

As of March 2015, 51,201 tanks had been registered with the majority being

Crude Oil tanks (13,121), and Brine, Oil and Gas tanks (10,381). Kanawha County

registered the greatest number of tanks with 8,660, with Lewis and Wyoming Counties

trailing in the count substantially (4,151 and 3,187 respectively).

Tank size varied considerably with the largest tank in the state being a Natural

Gas Condensates tank registered at greater than 9.2 million gallons. The next four tanks

were greater than 6 million gallons each and consisted of two in Wayne County

(Number 2 Fuel Oil) and two in Brooke County (Natural Gas Condensates).

Interestingly enough, the oldest tanks that were still in service are more than 100 years

old. 5 tanks were built in the 1800’s with the oldest being built in 1888. All 5 of these

tanks are crude oil tanks and are 4200 gallons in size. Only 388 of the tanks are greater

than 75 years old with the majority (36481) being less than 30 years old

As for tanks that reside within the Zone of Critical Concern, 509 are in Marshall

County, 272 are in Hancock County, 251 and 249 reside in Brooke and Logan County

respectively. Most of the tanks are less than 10,000 gallons (40,796), 5652 are between

10,000 and 50,000 gallons, and 2262 tanks are greater than 50,000 gallons.

As of this report, there are 126 public water utilities within the State of West Virginia that are, or may be, impacted by this legislation. For example, the code of state rule, 64-3 added additional water source components that became effective on April 15, 2015.

o The are 126 public water systems that are required to update their SWPP

o 126 public water systems have started updating their SWPP,

o As of December 1, 2015, 2 have completed their SWPP and submitted it to

BPH for approval

o As of December 15, 2015, no SWPP’s have received final approval.

o DHHR/BPH, through Regional Planning and Development Councils, has

provided funding for 115 public water systems to assist with updating their

SWPP. The total amount provided is approximately $2.2 million.

o DHHR/BPH has provided 126 public water systems its suggested list of

Potential Sources of Significant Contamination, as required by the law.

o The number and type of raw water contamination events since SB373 and

SB423 were enacted. Numerous spill events (some major/some minor)

have occurred within West Virginia during this time period as reported by

the DEP spill reports and then forwarded to the water utilities. At this time

BPH does not have a process to track these incidents. Since DHSEM is the

recipient of the initial spill report, tracking of spills of all nature would

best be accomplished by that organization.

43

o Any situation where a water system was required to shut down their intake

with brief summaries of the nature of the situation and whether planning

instituted since the legislation has been valuable.

No systems were required to shut down their intakes. Situations when

water systems shut down their intake as a precautionary measure include: Ohio River

systems for harmful algal blooms; Potomac River systems due to latex spill; Kanawha

River systems due to Bakken crude oil spill; and Greenbrier River systems due to a spill

originating from a tractor trailer diesel fuel spill.

American Petroleum Institute (API) and Steel Tank Institute (STI) inspection

requirements where incorporated into the 2015 legislation SB423. These national

standards should help to ameliorate or even eliminate an issue prior to it becoming a

problem. A conclusion regarding the actual effectiveness and efficiency of these

requirements is not feasible with the data available, but the committee is confident that

this is a large step in the right direction.

The review and assessment was broken into components as noted previously.

Therefore, the following is offered in response to the separated questions, with

conclusions below:

❖ We are asked to review and assess the 2014 AST legislation. With significant

modifications passed in 2015 and proposals already submitted for the 2016

legislative session, should we broaden our scope to include AST law which

currently applies to tank owners, as well as proposed law which will likely apply

to tanks in 2016.

❖ As previously noted, it was the general consensus of the group that consideration

should be expanded to include the current law, SB423(2015 legislation). It was

noted that “It would seemingly be a waste of time and energy to focus on

legislation no longer in effect.”

❖ Due to the shifting considerations, the 2016 proposed changes were considered,

but an understanding that that legislature may significantly change or ignore any

proposal, limited emphasis were placed on these proposals.

❖ The consensus is that we should look at the existing and proposed legislation

(Statutes and Legislative Rules). To that end:

1) SB373:

http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Documents/FINALS

B373-The%20TankBill.pdf

2) SB423:

http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Documents/SB423.p

df

http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Documents/FINALSB373-The%20TankBill.pdf

http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Documents/FINALSB373-The%20TankBill.pdf

http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Documents/SB423.pdf

http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Documents/SB423.pdf

44

b) In what way(s) can we/should we indicate to the legislature the effectiveness (or lack

thereof) of the current/future processes

a. Are there quantitative methods that can be brought to bear?

❖ Even though it still may be too early to accurately assess the impacts of the

rules, the above referenced quantitative measures appear to be valuable. It is

with these measures that future commissions will be able to accurately assess

the effectiveness and efficiency of the work completed by all entities.

b. How do we even define ‘effectiveness’?

❖ It is believed that water systems throughout the state are moving forward

expeditiously to create programs with the required elements and that they are

using the public input obtained from a variety of venues to assist in this

process.

❖ As noted elsewhere, the confidentiality restrictions need to be investigated.

Some with the workgroup feel that information that is held by the state could

be used by the utilities to assist in their planning process. To that end, the

workgroup again wishes to concur with the recommendations of workgroup

one as contained in Appendix A.

❖ Water systems commit to a reasonable number of strategies in their

Management Plans, and BPH institutes a system to monitor progress toward

implementing these strategies.

❖ There also remains concern that the lack of funding will prevent the

implementation of many of the needed improvements and that the overall

effectiveness and efficiency is simply stated in: ‘does the legislation protect the

water supply’. It may be too early to make this determination, but positive

legislation protecting the water supply remains critically important (as noted

additionally below).

c) Does the 2014/2015 legislation help the public water supply systems to

ID/react/respond to issues? [if not, why not, and how can we propose to fix it?]

❖ The changes made by SB423 regarding restricted information have been

impacting the development of SWPPs. It has created difficulty in obtaining the

needed answers. Specific examples would be of great benefit to those involved,

and clarity of information and sensitivity and confidentiality will greatly assist

this process. Because state and federal law may be in conflict in this instance, a

workable solution is needed. To this end, the workgroup concurs with the

recommendations of workgroup 3 contained in Appendix B.

45

❖ The proposed AST legislative rule, 64CSR3, nullifies requirements of

notification to downstream water utilities of confirmed releases and of the

entity’s Spill Prevention and Response Plans (or other spill prevention

requirements) to downstream water utilities. Situationally appropriate access

to protect the water supply would be prudent.

❖ There has been consternation and concern that the original PWSSSC report

was not afforded the proper hearing. It is strongly recommended that the

current and past reports be used to craft future legislation. One member

noted: “SB423 (from 2015) compounded the above by reducing both the

number of regulated PSCS operators and the requirements on them, yet that

bill left requirements on the public water suppliers unchanged. So, utilities are

still expected to meet the original standards, but now with less resources and

cooperation. That legislation was apparently enacted without input from the

PWSSSC, or reliance upon its previous recommendations.”

d) Does the 2014/2015 legislation help public awareness and participation? [if not,

why not, and how can we propose to fix it?]

❖ It is believed that public awareness and participation would benefit significantly if the recommendations of the PWSSSC were received and deliberated by the Legislature in public hearings. However, it should be noted that many water utilities have limited funds within their budgets for public education and communication. To build on the earlier points regarding information exchange and confidentiality, it is believed that a process whereby certain within the utilities be tasked with holding the information confidential, while still allowing certain critical individuals the access that they need. This includes notifications by both the operators and the agencies to the utilities. While it seems that the legislation is working toward its’ intended consequences, it is too early to conclude that the effectiveness and efficiency of the legislative actions are sufficient to attain the goals and vision of the state and the stakeholders.

For example: processes in place look to be of assistance to the 134 groundwater

systems within the state. The DHHR is currently considering if they fall under

protection plan requirements. This decision, and the implementation thereof, has the

potential to impact the considerations and proposals of the subcommittee. With

roughly 12,011 individual points of emission, the groundwater impact has the potential

to be positively synergistic regarding the public water supply systems.

The difficulty in creating a specific list of all potential contaminants leads the

subcommittee to consider the larger protection mechanisms to be critical. Additionally,

the training and spill workshops that are being held throughout the state offer great

hope in not only helping entities to comply, but to keep the waters of the state safe for all

potential uses.

46

Again, while the dynamic process of legislative creation fashions a moving target,

especially as it relates to the effectiveness and efficiency determination, the current state

of rules and policy offer continued belief that issues such as the Freedom Industry spill

will never again cause the impact and distress that permeated the Kanawha Valley. This

assumes that a positive path forward is continued.

Respectfully submitted:

Public Water System Supply Study Commission

47

Appendix F

PWSSSC Work Group 3 Recommended revisions to §16-1-9c

Amend W.Va. Code 16-1-9c to include a new subsection designated as subsection

(i) to read as follows:

The Secretary is authorized to propose legislative rules for promulgation

pursuant to article three, chapter twenty-nine-A of the Code to implement the

provisions of this section that may include a schedule for the submission of Source

Water Protection Plans by public water utilities pursuant to subsection (f) that staggers

the schedule for the submission of Source Water Protection Plans, except that for the

purpose of staggering the dates of submission of updated Source Water Protection

Plans, the Secretary may designate a schedule of submission greater than three years

from the initial submission required by a legislative rule promulgated pursuant to this

subsection.

48

Appendix G

WEST VIRGINIA CHEMICAL RELEASE PREVENTION PROGRAM Contents

PROGRAM OUTLINE:

1. PROGRAM STRUCTURE

2. DEFINITIONS OF COVERED CHEMICAL FACILITIES AND CHARACTERISTICS

Covered chemical facilities

Facility characteristics

NOTES:

3. PROGRAM PROCESSES

PROGRAM 1 CRITERIA

PROGRAM 2 CRITERIA

PROGRAM 3 CRITERIA

PROGRAM OUTSTANDING QUESTIONS

4. PROGRAM ORGANIZATION / 5. ROLES AND RESPONSIBILITIES

INTERAGENCY WORKING TEAM

ADVISORY TEAM

6. PROJECT TIMELINE

PHASE 1 – COMPLETE

PHASE 2 – PROGRAM DEVELOPMENT

PHASE 3 – IMPLEMENTATION

PHASE 4 – STATEWIDE EXPANSION

7. FEE SYSTEM

8. APPLICABLE LOCAL, STATE AND NATIONAL LAWS

9. LEGISLATIVE CHANGES NEEDED TO CARRY OUT THE PROGRAM

1. PROGRAM STRUCTURE

● Develop Guidance Documents for facilities

● Risk Management Plan and Safety Plan Review developed by facilities

● Conduct Facility Audit/Inspections

○ Unannounced inspections of the regulated businesses are required at least

once every three years to ensure that the facilities have the required

programs in place and are implementing the programs.

○ Embeds employee participation.

● Perform incident investigation and root cause analysis

49

● Issue public reports on audits and plan reviews

● Hold public meetings and perform public outreach

● Public Participation

○ A 45-day public comment period and public meetings for the completed

Safety Plans and preliminary CRPP audit findings.

○ All written comments will be taken into consideration. Changers will be

made, when appropriate, in either the Risk Management or Safety Plans or

in the audit findings.

○ CRPP will respond to all written comments in writing.

○ Comprehensive website:

■ Guidance documents

■ Interactive mapping of facilities and audit summaries

■ Meeting notices

■ Regulatory framework

■ Comprehensive incident database

■ Plans

■ FAQs

○ CRPP will hold public meetings:

■ after a Major Chemical Accident or a Release

■ where there is a public concern

■ on each Safety Plan and Audit of Industrial Safety Ordinance

facilities

○ Scheduled document review available at CRPP office.

○ Plans and Audit findings available at specified libraries.

○ Annual report summaries:

■ Audits conducted

■ Public participation

■ Major incidents (if any)

■ Status of investigations

■ ISS implemented

■ Penalties/enforced

■ Fees

○ Citizen will hold representative seat on Chemical Release Prevention

Commission

○ Public comment will inform risk scoring

50

2. DEFINITIONS OF COVERED CHEMICAL FACILITIES AND CHARACTERISTICS

Covered chemical facilities

● RMP & PSM facilities

● MCHM-like facilities - chemicals that pose hazard or risk but may not be

classified as such* (i.e. Tier II reporting facilities)

● Mobilie sources including but not limited to truck, rail, barges, pipelines*

● Cracking facilities*

● Oil and gas separating facilities*

*further analysis is needed to understand the scope of integrating these facilities into

the program and to clarify quantities and thresholds

Facility characteristics

● Volatile substances

● Utilize RCRA(c) guidance

o Ignitability

o Corrosivity

o Reactivity

o Toxicity

● Facilities and/or other chemical threats close to vulnerable populations (e.g.

schools, nursing homes, hospitals, communities)

● Hazards are to be identified in a comprehensive way -- quantities, proximity to

vulnerabilities and toxicity and route of entry are to be considered

NOTES:

● Where toxicity is “unknown”, risk should be assumed unless otherwise identified

● We need a full account of the true contents of “what’s in the tank”...such as with

MCHM that actually turned out to have many different chemicals blended

together

3. PROGRAM PROCESSES

PROGRAM 1 CRITERIA

* INDICATES PART OF RMP OR PSM

1. Processes that contain a regulated material above the State or Federal threshold, but

under a worst-case release scenario as defined, would not result in impacting the

public and has had no accidents with specific offsite consequences occur within the

past five years.

2. Facilities with operations that are subject to the Chemical Release Prevention

Program because of a Program 1 process are required to develop, implement, and

maintain the following:

51

a. Hazard Assessment*

b. Worst-Case Scenario*

c. Five-year accident history*

d. Emergency Response Program*

PROGRAM 2 CRITERIA

1. Processes not eligible for Program 1 or subject to Program 3 are placed in

Program 2.

2. Facilities with operations that are subject to the Chemical Release

Prevention Program because of a Program 2 process are required to

develop, implement, and maintain the following:

a. Hazard Assessment, including the following:

i. Worst-Case Scenario(s)

ii. Alternative Release Scenarios (more likely to occur)

iii. Five-Year Accident History

b. Prevention Programs, including the following:

i. Safety Information*

ii. Hazard Review*

iii. Operating Procedures*

iv. Training*

v. Maintenance*

vi. Incident Investigations*

vii. Compliance Audits

viii. Management System (that oversees the prevention

elements)*

c. Emergency Response Program*

PROGRAM 3 CRITERIA

1. The whole facility is covered, not just process(es) that have a regulated

substance over a threshold quantity.

2. Processes not eligible for Program 1 and either subject to OSHA's Process

Safety Management standard under Federal or West Virginia OSHA

programs or described by one of the ten specified North American

Industrial Classifications Standards (NAICS) codes (primarily related to

petroleum refining or chemical manufacturing).

3. Processes at a facility that handle a listed chemical above a specified

quantity are subject to the Chemical Release Prevention Program.

Facilities with operations that are subject to the CRPP because of a

Program 3 process are required to develop, implement and maintain the

following:

a. Submittal of a Safety Plan (public document)

http://cchealth.org/hazmat/naics.php

52

b. Submittal of Risk Management Plan including Off-Site

Consequences Analysis (public document)*

c. Hazard Assessment, including the following:

i. Worst-Case Scenario(s)*

ii. Alternative Release Scenarios (more likely to occur)*

iii. Five-Year Accident History*

a. Emergency Response Program*

4. Prevention Programs, including the following:

a. Process Safety Information

b. Process Hazard Analysis*

c. Operating Procedures*

d. Training*

e. Mechanical Integrity*

f. Incident Investigations*

g. Management of Change*

h. Pre-startup Safety Reviews*

i. Compliance Audits*

j. Employee Participation*

k. Contractors*

l. Hot Work Permits*

m. Management System (that oversees the prevention elements)*

n. Human Factors Program

o. Management of Organizational Changes

p. Inherently Safer Design Analysis

i. MOC when major change occurs

ii. Part of incident investigation

iii. All process units at least every 5 years

iv. Feasibility determination

v. Layer of Protection Analysis

q. Root Cause Analysis Investigations

r. Safety Culture Assessments

s. Safeguard Protection Analysis

t. Process Safety Performance Indicators

u. External events analysis

PROGRAM OUTSTANDING QUESTIONS

● Community Vulnerability Analysis needs added into this section – see public

input action tracking for guidance.

● Other outstanding questions will be addressed in Phase 2.

53

4. PROGRAM ORGANIZATION / 5. ROLES AND RESPONSIBILITIES

A Chemical Release Prevention Commission shall be established with the purpose of the

Commission is to develop overall policy recommendations for and serve in an advisory

role to the Chemical Release Prevention Program. The Commission shall consist of an

Interagency Working Team and an Advisory Team, whose make up shall comprise of the

following:

INTERAGENCY WORKING TEAM

1. State Department of Environmental Protection

2. Kanawha-Charleston Health Department

3. State Bureau for Public Health

4. County Emergency Management

5. State Department of Homeland Security & Emergency Management

6. State Department of Labor / Occupational Safety & Health Administration

ADVISORY TEAM

1. Engineer

2. Toxicologist

3. Epidemiologist

4. Academic

5. Medical Doctor

6. Citizen

7. Ombudsperson*

*An Ombudsperson shall be appointed 1) To serve as a single point of contact for the

public regarding the CRPP; 2) To investigate concerns and complaints about the CRPP,

facilitate their resolution, and assist people in gathering information about programs,

procedures, or issues; and 3) To provide technical assistance to the public.

The Kanawha-Charleston Health Department (KCHD) shall administer the Chemical

Release Prevention Program which will consist of a technical/engineering team of

facility auditors and inspectors and an administrative staff. Additionally, it will be the

role of KCHD to ensure public participation as outlined in the program structure and

secure funding for the program.

Regulated facilities and the public including small businesses and individual citizens

shall be considered essential stakeholders of the program. Facilities shall be tasked to

provide right-of-entry to auditors/investigators and submit safety plans as outlined, and

the public will provide input on hazard scoring and general policy recommendations.

54

6. PROJECT TIMELINE

PHASE 1 – COMPLETE

PHASE 2 – PROGRAM DEVELOPMENT

Timeline: July 1, 2015 – June 30, 2016

● Obtain necessary legal authorizations**

● Technical synthesis

o Further develop program processes

o Further develop funding strategy and fee structure

● Policy analysis

● Program guidance

● Pollution prevention cost modeling

Resources needed:

● Industry expertise

● Policy analyst

● Funding to continue team coordination and convening

● Chemical Safety Board review of roadmap

**Guidance from U.S. Chemical Safety Board regarding program authority:

“The West Virginia Code Chapter 16, Public Health, charges the state public health agency with providing “Essential public health services [§16-1-1]” i.e., activities necessary to promote health and prevent disease, injury and disability for the citizens of the state.” The code authorizes the commissioner of the bureau for public health “To make inspections, conduct hearings, and to enforce the legislative rules concerning occupational and industrial health hazards [§16-1-6 (n)].” The Secretary of the state department of health and human resources may also propose Fees for services provided by the Bureau for Public Health [§16-1-4 (b)(8)].”

If the West Virginia Department of Health and Human Services were to implement a program similar to the California safety ordinance, it would likely improve stakeholder participation and awareness, and improve emergency planning and accident prevention.”12

1

55

PHASE 3 – IMPLEMENTATION

Timeline: Begin July 2016.

PHASE 4 – STATEWIDE EXPANSION

To be determined.

2 [Emphasis added] Pesticide Chemical Runaway Reaction Pressure Vessel Explosion. (2011, January). U.S. Chemical Safety and Hazard Investigation Board. Retrieved May 14, 2015, from http://www.csb.gov/assets/1/19/Bayer_Report_Final.pdf.

56

7. FEE SYSTEM

● Self-sustained following upstart

● Performance-based

o Incentive for companies with good practice

o “Discount” for risk minimization

● Risk-based

o Based on risk-matrix

o Reassessment as events occur

o Stakeholders decide/inform risk

Figure 1.

57

8. APPLICABLE LOCAL, STATE AND NATIONAL LAWS3

FEDERAL

● EPA Risk Management Program 1996

● OSHA Process Safety Management 1992

STATE:

● Aboveground Storage Tank Act

§22-31-12. Public Water System Supply Study Commission: (4) A review

and consideration of the recommendations of the U. S. Chemical Safety and Hazard

and Investigation Board after its investigation of the Bayer CropScience incident of

2008;

LOCAL: ?

9. LEGISLATIVE CHANGES NEEDED TO CARRY OUT THE PROGRAM

● Create rule granting authority to establish WV Chemical Release Prevention

Program

o Ensure right-of-entry

● Other(s) identified in Phase 2

3 needs further analysis

58

ROADMAP PROCESS

GOALS:

1. Enhance the prevention of incidental chemical releases and optimize responses in

the event of their occurrence

2. Mitigate factors that have the potential to degrade human health and the

environment

3. Develop a Chemical Release Prevention Program in Kanawha Valley that can be

modeled statewide

TIMELINE

● MEETING 1: October 24, 2014 – Project Overview

● MEETING 2: November 14, 2014 - New Jersey Toxic Catastrophic Prevention Act

● MEETING 3: January 23 & 24, 2015 – Contra Costa Co. Industrial Safety

Ordinance

● MEETING 4: February 20, 2015 – Covered Facilities/Characteristics for WV

● MEETING 5: March 20, 2015 - European Water Framework Directive

● MEETING 6: April 24, 2015 - Working meeting

● MEETING 7: May 15, 2015 - Public hearing

● MEETING 8: June 26, 2015 - Final Recommendations

CONVENERS

People Concerned About Chemical Safety are non-profit community organization based

in Kanawha Valley dedicated to developing solutions that prevent chemical disasters

and protect our West Virginia communities.

PLANNING TEAM

Task:

Identify national best practices and garner public input among stakeholder groups in

the development of a roadmap outlining what a Chemical Release Prevention Program

should look like for the Kanawha Valley

Members and Participants

● Dr. Michelle Foster – CEO, Kanawha Institute for Social Research and Action,

former Union Carbide Chemical Engineer

● Walt Ivey** - Director Environmental Health Services, WV Department of Health

& Human Resources/Bureau for Public Health

● Dr. Bill Kroesser - Program Coordinator for Chemical Process Operations,

Applied Process Technology Faculty, Bridge Valley Technical College

59

● Dr. Mike McCawley* - Interim Chair, WVU Department of Occupational &

Environmental Health Sciences, former Public Health Service Officer with the

Centers for Disease Control and Prevention (CDC) at the National Institute for

Occupational Safety and Health (NIOSH),

● Pam Nixon, MEnvSc* – Citizen and Environmental Advocate, Citizen

Representative, member Kanawha Putnam Emergency Planning Committee

● Dr. Terry Polen*– Ombudsman, WV Department of Environmental Protection

● C.W. Sigman** - Deputy Director/Fire Coordinator, Kanawha County Homeland

Security and Emergency Management, represented Kanawha Putnam Emergency

Planning Committee for Larry Zuspan, Administrator

● Josh Sword – Secretary/Treasurer, AFL-CIO, West Virginia

● Eric Tissenbaum** - Independent Living Advocacy/ Skills Training Specialist,

Appalachian Center for Independent Living Inc. / Kanawha Putnam Emergency

Planning Committee Training Chair

● Tony Turner** – Director Indoor Air Quality, WV Department of Health &

Human Resources/Bureau for Public Health

● Nasandra Wright, MPH, R.E.H.S, RS** - Environmental Health Director,

Kanawha-Charleston Health Department

Invitations for participation were extended to:

● Jim Covington, Plant Manager, BayerCropScience, Institute Facility (declined

participation)

● Tyler London, Plant Manager, Dow Chemical, South Charleston Facility (no

response)

● Mark Nunley, MS, Senior Process Engineer for MATRIC, Director of National

Institute for Chemical Studies (declined participation)

● Jim O'Connor, Plant Manager, DuPont, Belle Facility (declined participation)

● Timothy Byrd, Plant Manager, DuPont, Belle Facility (declined participation)

● Angela Wilson -- Industrial Hygienist, Occupational Safety and Health

Administration Consultation (provide consultation assistance)

● Larry Zuspan, Administrator, Kanawha Putnam Emergency Planning Committee

(deferred representation to CW Sigman)

● member Public Water Service Supply Study Commission

● **member multi-disciplinary Rapid Response Team during Elk River chemical

leak

ACTIVITIES

● Chemical Release Prevention Program (CRPP) Roadmap planning meetings

o Monthly since October 2014

● Collect and utilize public input on CRPP planning process

o Online, mail, surveys, working groups, public input each meeting,

synthesis

● Educate public, private and governmental sectors on best practices in chemical

safety and security and release prevention

60

● Monthly meeting – model program presentations

o Chemical Safety Board recommendation overview

o NJ Toxic Catastrophic Prevention Act (Komosinsky)

o European Water Framework Directive (McCawley)

● Jan. 2015 - Summit on Chemical Safety in West Virginia

o Vulnerable populations

▪ Children/Pregnant women (Paulson)

▪ Minority and income disparities (Roberts & Shafiei)

o Contra Costa County Industrial Safety Ordinance

▪ Program overview (Sawyer)

▪ Community perspective (Clark)

▪ Worker/community engagement (Bravo)

o Update on Freedom Industries testing (Whelton)

● Develop draft Roadmap for public input

o May 15th meeting

● Provide final draft for implementation

o June 19th meeting